Under the Child Support (Assessment) Act, the primary carer of the child or children can make a claim for child support from the other parent.
The Child Support Agency is responsible for administering your child support arrangements, and assessing the amount of support which should be provided.
The decision is based on each parent's income, the number of children and their living arrangements.
There are three different categories of child support payments:-
- Periodic payment - payments of a regular amount on a recurring or cyclical basis.
- Non-periodic payments - Where the court or agreement makes an order for non-periodic payments (eg payment of school fees to third parties), it must state whether or not these will reduce the annual rate of child support payable (s. 125).
- Lump sum provision - a payment made to the other parent as a "credit balance" to be used to meet ongoing liabilities (s. 69A). The Court or the agreement must specify the percentage of these liabilities to be met by drawing on the lump sum.
There are also non-agency payments, being:
- a payment made directly to a payee (s .71);
- a payment to a third party in discharge of a debt owed by the payee, the payer, or both (s. 71A); or
- a non-cash transaction such as a transfer of property or the provision of services (s. 71B).
The CSA does not have power to enforce child support payments against third parties.
Since 1 July 2008, child support is determined on the basis of the cost of care of children, the adjusted income of both parties and the level of care provided by the parents (s. 35A) and (s. 35).
There are 8 steps to this process being:-
Step 1. Work out each parent's child support income for the child for the day (s. 41).
Step 2. Work out the parents' combined child support income for the child for the day (s. 42).
Step 3. Work out each parent's income percentage for the child for the day (s. 55B).
Step 4. Work out each parent's percentage of care for the child for the day (s. 48).
Step 5. Work out each parent's cost percentage for the child for the day (s. 55C).
Step 6. Work out each parent's child support percentage for the child for the day (s. 55D).
Step 7. Work out the costs of the child for the day under (s. 55G) and (s. 55H).
Step 8. If a parent has a positive child support percentage under step 6, the annual rate of child support payable by the parent for the child for the day is worked out using the formula:
(Parent’s child support percentage for the child for the day) X (costs for the child for the day)
There is a child support online estimator that calculates an estimate of what child support and family assistance payments are likely to be under the formula.
Binding child support agreements:
- Are formal agreements, in writing and signed by both parents.
- Can only be entered into on legal advice and must include a statement to the effect that each party has received independent legal advice as to the effect and advantages and/or disadvantages of the agreement, before it was signed.
- Must include an annexure, for each of the parties to the agreement, signed by the person who provided the legal advice, which certifies that the advice was provided (section 80C).
- Can be made for any amount that both parents agree is appropriate. When calculating the amount of any Family Tax Benefits or other payments to be made to parents, Centrelink will base payments on the notional assessments of child support, not the agreed amount.
- The Binding Agreement cannot be varied and can only be terminated. The grounds for terminating a Binding Agreement are limited (s.136) and when drafting a Binding Agreement you need to “think ahead” to provide for various contingencies, such as changes in the financial circumstances of the parties, unemployment or change in care arrangements.
Limited child support agreements:
- Do not require legal advice.
- Must be an administrative assessment in place at the time that the agreement is entered into and the agreement must not provide for payment of periodic child support which is less than the assessment.
- Cannot be varied but can be ended by a new limited or binding agreement or a court order.
- Must be lodged for acceptance with the CSA and accepted by the CSA before the agreement will have any effect.
- One party can give notice to the Registrar after three years to terminate the agreement.
- A party can at any time obtain a notional assessment of child support and if the notional assessment changes by more than 15% from the provision of periodic child support in the agreement, then the agreement can be unilaterally terminated.
Relevant provisions of the Child Support(Assessment) Act 1989 relating to Child Support Agreements include:
- (s.80C) – Binding Child Support Agreements
- (s. 80CA) – No variation of Binding Child Support Agreements
- (s. 80D) – Terminating Binding Child Support Agreements
- (s. 80E) – Making Limited Child Support Agreements
- (s. 80F) – No variation of Limited Child Support Agreements
- (s. 80G) – Terminating Child Support Agreements
- (s. 81) – Requirements for a Child Support Agreement
- (s. 82) – Children in relation to whom agreements may be made
- (s. 83) – Persons who may be parties to Agreement
- (s. 84) – Provisions that may be included in Agreements.
- (s. 136) – Power of Court to set aside Agreements.
Once the CSA makes a decision on a child support matter, each parent has the right to object to the decision and the CSA conducts an internal review of the decision (s.80).
An objection must be lodged with the CSA within 28 days of the original decision (unless an extension of time is granted), outlining the grounds relied upon. The other party is given the opportunity to respond.
The Registrar is required to consider the objection and any response within 60 days after the objection is lodged and either disallow the objection or allow it in whole or in part.
Written notice of the Registrar’s decision must be provided to the parties (s.87).
Once a CSA objection decision has been made, either party can appeal to the Social Security Appeals Tribunal (SSAT) – see http://www.ssat.gov.au
Either parent can object to the original review decision (s.89) within 28 days (s.90).
Parties are able to appeal to the SSAT by way of an appeal form or by initiating the appeal over the telephone.
After an application for a review of a CSA decision is received by the SSAT, a Case Manager is assigned to each case. Copies of the application are sent to the other parent and the CSA. The CSA then has 28 days to provide the SSAT, the applicant and the other parent with a written explanation of its decision and any other relevant papers from the CSA file. Once these documents have been received, the SSAT notifies the applicant and the other parent of an appointment time for a SSAT Hearings, or in some circumstances, a pre-hearing conference.
An SSAT Appeal usually takes 10-12 weeks from the date of lodgment.
Once the review has been determined the SSAT will provide the decision and the reasons for the decision.
Parties can appeal the SSAT decision in Court (usually the Federal Circuit Court or Federal Magistrates Court), but only on a question of law. Appeals as to the refusal to grant a time extension and ‘care decisions’ can be made to the Administrative Appeals Tribunal (AAT).
CSA's approach to collecting overdue child support is guided by the compliance strategy – CSA: Supporting parents to meet their child support responsibilities 2008-2010.
The CSA has extensive investigative powers to obtain information and evidence as to child support payments (s.120).
The CSA also has extensive enforcement powers for collection of child support, including:
- Collection from Third Parties (s. 72A), for example employer deductions of arrears
- Tax Refund Intercepts (s. 72);
- Deductions from social security pensions and other benefits (s. 72AA);
- Departure Prohibition Orders (DPOs) (s. 72D) - A DPO is an administrative order that the CSA can issue to prevent parents from leaving Australia until they pay their overdue child support or negotiate a satisfactory payment arrangement; and
- Litigation – the CSA (s. 113) and/or the payee(s. 113A) is entitled to enforce the assessment through the Court system.
Once an administrative assessment of child support has taken place, either parent may make a "Change of Assessment" Application to make a departure from the administrative assessment because of special circumstances (s. 117).
The leading authority on the interpretation of s.117 is In the Marriage Of: Elaine Fay Gyselman Applicant/Wife and Robert George Gyselman Respondent/Husband  FamCA 93 (19 December 1991).
The key components of Departure Applications in special circumstances include:-
- That there are ten set reasons for a Change of Assessment Application - see Change of assessment form.
- That either parent can make a departure application or the registrar can initiate the process.
- That departure decisions cannot reduce the assessment below the minimum rate.
- That decisions cannot change the assessment for a period more than 18 months before the applications was made.
- That the application, any response or other documents are exchanged between parents.
Parents can also seek to change the child support assessment on the following basis:
- Reaching an agreement with the other parent;
- Court application;
- Objection to the level of care;
- Non-agency payments;
- A parent's income changes; or
- A "terminating event" occurs.
The Courts have jurisdiction to hear the following child support matters (see s. 98W):
- An appeal of a decision of the SSAT in relation to a question of law;
- Declaration as to whether a person has a Child Support entitlement – parentage issues (s. 106A)and (s. 107);
- Stay Orders - an application can be made if there are court proceedings on foot, a change of assessment application or objection is being considered by CSA or the SSAT is considering an application for review(s. 111C);
- Where a party is seeking leave under (s. 111) to depart from assessments that are older than 18 months (to a maximum of 7 years);
- Substitution orders (s. 123) - Child support to be paid to the person with day-to-day care of the child in a form other than periodic cash payments — such as private school fees, lump sums, chattels, medical insurance or food;
- The variation or the setting aside of a Child Support Agreement; Modification of Child Support Orders;
- Urgent maintenance orders pursuant to (s. 139);
- A recovery of Child Support paid where no liability exists to pay Child Support (s. 143);
- Where the parties are both involved in other proceedings pending before the Court, and the Court considers it convenient to deal with a child support departure application at the same time(s. 116);
- Where parties are making an application for lump sum child support under (s. 124);
- Applications for further education expenses by children over the age of 18 years (s. 66L of the Family Law Act 1975);
- Applications for child bearing expenses (s. 67B), (s. 67C), (s. 67D) of the Family Law Act 1975); and
- The Court’s general powers under (s. 141).
A copy of all applications under the Child Support Legislation must be served on the CSA (FLR 4.23)
The assessment and collection of child support is primarily the responsibility of the Child Support Agency (CSA) – see http://www.csa.gov.au/.
The primary legislative provisions for child support are:
Both Acts are supplemented by Regulations.
A raft of changes came into force on 1 July 2006 following the passing of the CHILD SUPPORT LEGISLATION AMENDMENT (REFORM OF THE CHILD SUPPORT SCHEME - NEW FORMULA AND OTHER MEASURES) ACT 2006
Which children are covered?
- The Act applies to those children whose parents separated on or after 1 October 1989 (s .20) or who were born after that date (s .19) or who have a sibling that is an eligible child (s .21).
- The child must be under 18 years of age, must have a connection to Australia and must not be a member of a couple (s .24).
- Child support terminates when the child is no longer an eligible child, or when a terminating event occurs (s.12).
Which parents are covered?
- The Applicant for child support must be an eligible carer of the child (s .25); (s .25A).
- The Applicant must be legally separated from the other parent (s .9).
- The Applicant must be an Australian resident or resident of reciprocating jurisdiction (s .29A).
- If two parties jointly have care of a child, then only one of the joint carers may apply for child support (s.26).
- A parent's duty to maintain the children of one relationship has equal priority with the duty to maintain children of any subsequent relationship but is subservient to the primary duty of a parent to maintain himself or herself (s .66C) of the Family Law Act 1975 and Ganter and Grimshaw  FamCA 52 (12 May 1998).
Australia has existing child support arrangements with many overseas countries. These are referred to as reciprocating jurisdictions (s.29B). Some reciprocating jurisdictions can only recognise court orders for child support. These are known as excluded jurisdictions.
The CSA can:
- make and continue a child support assessment where the payer resides overseas in a reciprocating jurisdiction, provided that the other parent is a resident of Australia;
- accept an application for assessment from a payee or payer overseas when transmitted through the overseas Central Authority;
- accept an application for assessment from an overseas Central Authority applying on behalf of a payee in a reciprocating jurisdiction;
- accept an application for assessment made directly by the payer who is a resident of a reciprocating jurisdiction;
- register and enforce an overseas maintenance assessment;
- register and enforce an overseas maintenance order;
- register and enforce an overseas 'agency reimbursement liability';
- register and enforce an overseas maintenance agreement;
- register and enforce arrears that have accumulated under an overseas maintenance liability;
- transmit an application for review/variation of a liability made in an overseas country; and
- assist overseas authorities with location and service requests for parents in Australia.
where to next?
Taking the next step and contacting a family lawyer can be scary. Our lawyers will make you feel comfortable so you can talk about your situation. But first, ask yourself, Do I really need a lawyer?
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